Special Report: How Antonin Scalia and Neil Gorsuch created Corporate Personhood Religion to place corporate roadblocks between government benefits and citizens.
Donald Trump has nominated Neil Gorsuch to replace the recently departed Supreme Court Justice Antonin Scalia. Both played roles in adding corporate religious rights to the Constitution.
Donald Trump nominated Neil Gorsuch to fill a seat deliberately left open for nearly a year. In March, 2016, Barack Obama nominated “moderate” Merrick Garland to fill the seat of Antonin Scalia. The Republican Senate refused to consider Merrick Garland by fabricating a new rule claiming there must be an intervening election before consideration. Mitch McConnell and the Republicans violated all prior precedent so that Republicans would continue to hold onto the majority of Supreme Court Justice seats as they had since 1970.
During the period where Republicans controlled the Supreme Court, a series of cases were decided that perverted the Constitution. The Supreme Court refused to recognize religious rights of humans, but conversely, then expanded religious rights of corporations — turning the First Amendment free exercise clause on its head.
Both Antonin Scalia and his nominated replacement Neil Gorsuch played pivotal roles in this perversion of religion rights. This report reviews all the cases, starting with the infamous case of Citizens United V. FCC, then looking at religion cases including Hobby Lobby.
1. CORPORATE PERSONHOOD RIGHTS. In the 18th century, black people were considered property and women had no political rights. In the 19th century, black people became considered humans. In the 20th century, women gained political rights. In the 21st century, corporations were given new Constitutional rights to override the rights of blacks, women and all other humans through the corporate personhood doctrine.
Scalia supported ‘corporate personhood’ for unlimited election funding. (Citizens United v. FCC, 2010)
Corporate personhood is the idea that corporations enjoy Constitutional protections under the Bill of Rights. In the past, the Supreme Court dabbled in the area of giving corporations limited rights in some cases, but denied such rights in others.
In 2004, non-profit organization Citizens United complained to the FCC that the movie Fahrenheit 911 should be banned as an illegal electioneering movie. Fahrenheit 911 by Michael Moore was a critical documentary of George W. Bush as he was running in the presidential election. Citizens United was unsuccessful in stopping the movie.
In 2008, Citizens United produced its own movie, Hillary: The Movie, about the presidential candidate, to be shown in the final month before the election. But the FCC said Hillary, The Movie was an electioneering film in violation of the rules and banned advertising of the movie in that time frame. Citizens United sued, claiming the movie did not violate FCC rules. The dispute went to the Supreme Court.
The Supreme Court heard oral argument on the case. Rather than decide the case as is customary after oral argument, the Court changed the question and ordered a second oral argument. The new question asked, “For the proper disposition of this case, should the Court overrule” a number of earlier campaign funding cases.
In 2010, Anthony Kennedy penned the 5-4 opinion overturning this limited FCC ruling on this specific movie and swept the floor with it. Using First Amendment free speech and judicial activism, a hundred years of law and decades of Supreme Court decisions were overturned.
Corporations and unions were given the right to spend unlimited amounts of money and fill large chunks of speech space. Scalia signed on. Since then, the “Super PACs” created by this decision have vastly expanded the campaign money pie.
Dissenting from the decision, John Paul Stevens explained, “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
While corporate personhood has been applied to First Amendment free speech, the principle may ultimately wind up covering most of the Bill of Rights, moving next to religion …
2. FREE EXERCISE OF RELIGION. The First Amendment’s Free Exercise Clause protected freedom of religion strongly until Antonin Scalia changed the test to reduce the protection for people. An angry Congress responded with a law attempting to restore the right. The Supreme Court then struck down the restored protection for people. But then Scalia expanded free exercise to corporations, upholding a Neil Gorsuch decision.
Scalia denied free exercise of religion for sacramental peyote use. (Employment Division v. Smith II, 1990)
Drug counselors were fired for participating one time in a religious ceremony where they “ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members.” They were denied unemployment benefits because they broke the law. The fired workers claimed that the state violated their “free exercise” of religion by denying benefits. The state supreme court agreed, but the case was appealed.
In a 6-3 opinion by Antonin Scalia, the Supreme Court determined that unemployment could be denied for peyote use because the criminal law was a general law that did not specifically target the religion.
Harry Blackmun and two other Justices dissented. They complained that this new ruling ignored “a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion” in prior cases and that Scalia “mischaracterized” those cases.
The overturned “exacting standard” was written into the 1993 Religious Freedom Restoration Act (RFRA). The act was passed by a near unanimous Congress to overturn the Smith case above and restore the prior Constitutional test through legislation. The RFRA protected religious rights against a restrictive “rule of general applicability” unless “the least restrictive means” was used to satisfy a “compelling governmental interest” as the Court previously did.
Scalia supported limiting the power of Congress to promote free exercise of religion. (City of Boerne v. Flores, 1997)
Under local laws, a growing congregation of a church was prevented from expanding to accommodate its parishioners. The church sued under the RFRA.
A 7-2 Supreme Court opinion found RFRA itself Unconstitutional because it “alters the meaning of the Free Exercise Clause” beyond the authority of Congress to “enforce” the Fourteenth Amendment. Congress could not extend religious freedoms. The church could not be protected. Scalia signed on to the conclusion.
In 2000, Congress responded to the Court with a new act, RLUIPA, which used different Constitutional theories to try to revive as much of the RFRA test as possible. The next case successfully upheld the more limited protection.
Scalia and the Court allowed a free exercise claim restricted to federal law. (Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 2006)
A unanimous Court of 8 Justices including Scalia upheld the more limited application of RFRA and the RLUIPA, blocking the federal government from confiscating hoasca tea from a Brazilian church.
But the free exercise of religion in the RFRA was about to head in a whole new direction.
3. CORPORATE PERSONHOOD RELIGION. Combining the above corporate free speech cases with the Religious Freedom Restoration Act (RFRA), Scalia extended corporate personhood rights to religion.
Scalia supported corporate religious rights over individual choices. (Burwell v. Hobby Lobby, 2014)
Under the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”), the federal government required health insurance companies to provide birth control coverage. Closely held for-profit corporation Hobby Lobby claimed a religious belief that some forms of contraception were actually abortion.
In a 5-4 opinion by Samuel Alito, the Court found that for-profit corporations enjoyed religious rights to deny birth control to employees. Scalia signed on. Corporate rights were extended: “A corporation is simply a form of organization by human beings to achieve desired ends.” Interests of employees or those who would bear the cost of picking up the denied services were subjugated because RFRA “protects the religious liberty of the [owners].”
Ruth Bader Ginsberg dissented. “Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”
Note the difference from the original Smith case. In that case, the “conservatives” did not allow an “exemption from a generally applicable law” for human people. Here, the Court uses the RFRA law that was meant to restore those rights of people, but it applies that protection to a corporation.
The entire Hobby Lobby case was argumentative and slapped together with many footnotes. The Alito side warned that, without this ruling, corporations would be forced to pay for “third-trimester abortions or assisted suicide.” The Ginsberg side warned that following this ruling, corporations could next opt out of vaccines, minimum wage, and equal pay for women.
The Hobby Lobby case came to the Supreme Court through an appeal of a decision by Judge Neil Gorsuch, who essentially created corporate personhood religion.
EDITOR’S NOTE: paragraphs in this article are italicized to fill in information between each case, as opposed to the usual practice of italicizing full-paragraph quotes.